Ved Prakash Chaddha vs Union Of India, Through … on 15 May, 1999

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74
Allahabad High Court
Ved Prakash Chaddha vs Union Of India, Through … on 15 May, 1999
Equivalent citations: 1999 (3) AWC 2194, (1999) 2 UPLBEC 1605
Author: O Bhatt
Bench: O Bhatt


JUDGMENT

Onkareshwar Bhatt, J.

1. Heard Sri A. D. Prabhakar, learned counsel for the appellant. Neither any one is present on behalf of the respondent nor any counter-affidavit has been filed though the sole respondent has been personally served on 21.2.1997 and an affidavit of service to that effect is filed by the appellant.

2. The present second appeal arises out of decree and Judgment dated 1.8.1983 passed by VIth Additional District Judge, Meerut in Civil Appeal No. 76 of 1977 whereby the appeal has been dismissed. The first appeal was directed against the decree and Judgment dated 10.11.1976 passed in Original Suit No. 11 of 1974, Ved Prakash v. Union of India, by VIIth Additional Munsif, Meerut, whereby the plaintiff’s suit has been dismissed.

3. The brief facts of the case are that the plaintiff-appellant has served as a Civilian School Teacher from 21.8.1950 to 5.2.1953 in Sikh Regimental Centre, Meerut. from 6.2.1953 to 6.1.1954 in Army Supply Corps Centre, North, Meerut and from 7.1.1954 to 7.6.1954 in Punjab Regimental Centre, Meerut Cantt. and since 8.6.1954 he was serving in C.D.A. Department. It has been pleaded that the service of the plaintiff appellant is/are governed by Civil Service Regulations, (hereinafter referred to as the Regulation). It has been pleaded that according to Article 418 (b) of the Regulation, the plaintiff is entitled to count the service from 21.8.1950 to 7.6.1954 for the purposes of :

(i) Benefits of pension, seniority, gratuity, confirmation and promotion etc.

(ii) For carrying of earned leave on the plaintiff’s credit during the abovesaid period.

(iii) For fixation of pay.

(iv) For the entry of the above said period in service-book as the period spent on duty.

4. It has been pleaded that the above period of service has been granted to the plaintiff for fixation of his pay and allowances in the service of C.D.A. Western Command, but the plaintiff has been denied the arrears of difference of pay due to him as a result of reflxation of pay prior to issue of the order dated 31.8.1970 by C.D.A. Western Command.

5. In the written statement, the respondent has pleaded that the appellant had resigned from his service in Punjab Regimental Centre, Meerut Cantt on his own accord. He has forfeited his entire past services by virtue of Article 418 (a) of the Regulation ; that benefit of previous service was allowed to the appellant for the purposes of fixation of his pay as a special case and that the appellant has no legal right to get the benefit of his previous service counted for pension and gratuity, etc. and to get difference of pay and allowances and interim relief.

6. The Courts below have dismissed the appeal and the suit of the plaintiff on the interpretation of Article 418. In the memorandum of appeal, three substantial questions of law have been formulated, which .are as under :

(i) Whether the Courts below have committed substantial illegality in completely misinterpreting Article 418 of the Civil Service Regulations?

(ii) Whether the Courts betow have committed substantial illegality in not considering the Article 418 in conjunction with other relevant articles which fully establish that the appellant had joined his new department with the permission of his earlier department?

(iii) Whether gross misinterpretation of beneficial

legislation like the Article 418 of the Civil Service Regulations results in substantial illegality?

7. It has been contended by the learned counsel for the appellant that both the Courts below gave erroneous conclusion on Article 418 of the Regulation and as such the second appeal raises substantial questions of law.

8. Article 418 of the Regulation runs as follows :

“418 (a) Resignation of public
service, or dismissal or
removal from it for
misconduct, insolvency, in
efficiency, not due to age. or
failure to pass a prescribed
examination entails
forfeiture of past service.

(b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts In full or in part, is not a resignation of public service.

In cases where an interruption in service is inevitable due to the two appointments being at different stations, such interruptions, not exceeding the Joining time permissible under the rules on transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation under Article 422 to the extent to which the period is not covered by leave due to the Government servant.”

9. It has been held by the appellate court that Article 418 (b) was not applicable in the present case and the finding in that regard arrived at by the trial court is affirmed. Article 418 (a) entails forfeiture of past service where there is resignation, dismissal or removal from it for misconduct. Insolvency.

Inefficiency not due to age or failure to pass a prescribed examination. Article 418 (b) elaborates the word, “resignation” and lays down that It will not be taken as resignation of public service. It runs as follows :

“(b) Resignation of an
appointment to take up. with
proper permission, another
appointment, whether
permanent or temporary,
service in which counts in full
or in part, is not a resignation
of public service.”

10. The words. “proper permission” occurring in Article 418 (b) of the Regulation has been interpreted by the Courts below to mean that the plaintiff has not obtained permission for resignation. a certificate of permission and that it does not connote an overact by the employee concerned.

11. G.I.M.F. Memo No. 3379-E-III (b)/65, dated the 17th June, 1965 bears Government of India decision and it provides as under :

“Government of India’s decisions.–(1) The question whether the benefit of past service for purposes of fixation of pay can be given to a Government servant who resigns his post before taking up appointment in the new post In the same or another Department, has been under the consideration of the Government of India. Normally, the benefit of past service is given only In those cases where such service has not been terminated by resignation/removal/dismissal. The President is, however, pleased to decide that in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may. If otherwise admissible under rules, be given for purpose of fixation of pay in the new post treating the resignation as a ‘technical formality’. The pay in such cases may be fixed under F.R. 27.

(2) The order will have effect from the date of issue and past

cases will not be reopened. Outstanding cases, may, however, be dealt with in accordance with these orders.”

12. The above memo of 17.6.1965 provides that where the Government servant applies for post in same or another department through proper channel and on selection, they may be asked to resign the previous post for administrative reasons, the benefit of past service may. if otherwise admissible under rules, be given for purpose of fixation of pay in the new post treating the resignation as a “technical formality’.

13. In the present case, admittedly there is no break in
service of the appellant from 21.8.1950 to 8.6.1954. The documents on record show that he had not resigned during the aforesaid period when he joined the various posts. Even if he had resigned, his resignation would have been treated only a ‘technical formality’ which could not deprive the benefit of past service to the appellant. In the present case, it has come in evidence that his application was strongly recommended and forwarded. The fact that application of the appellant as recommended and forwarded implies implicit permission and the same will amount to proper permission as is envisaged in Article 418 (b) of the Regulation. Article 418 (b) does not envisage obtaining permission by Government servant nor a certificate of permission is needed nor any overact by the Government servant is required. On the basis of the above phraseology and overstretching the provision and the meaning given to Article 418 (b), the conclusion drawn by the Courts below Is erroneous being contrary to the meaning which should be given to it. When the application of the plain tiff-appellant was recommended and forwarded by the authorities under which he was serving, it amounted to proper permission and the Courts below misinterpreted the provision of Article 418 (b) of the Regulation. It is held that Article 418 (b) of the Regulation applies to the present case and the

appeal and the suit were wrongly dismissed by the Courts below.

14. In the result, the appeal is allowed. The decree and Judgment of the appellate court passed on 1.8.1983 is set aside. The suit of the plaintiff stands decreed, for the reliefs claimed, with costs throughout.

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